Citation Nr: 1140926
Decision Date: 11/03/11 Archive Date: 11/16/11
DOCKET NO. 11-12 199 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUE
Entitlement to nonservice-connected pension benefits.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. A. Rein, Counsel
INTRODUCTION
The Veteran served on active duty from November 1950 to September 1952.
This case comes before the Board of Veterans' Appeals (Board) from a December 2009 administrative decision by the North Little Rock, Arkansas Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to nonservice connected pension benefits.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a) (2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
After a review of the claims file, the Board finds that there are discrepancies in the RO's determination to deny the Veteran nonservice-connected pension benefits as noted in the December 2009 decision and then in the February 2011 statement of the case (SOC). The Board is therefore unclear on how the RO arrived at its conclusion to deny the Veteran's nonservice-connected pension benefits because each analysis is comprised of different monetary figures. In this regard, the December 2009 decision concluded that the Veteran's income (including his wife's income) based on Social Security benefits was $19,056 and that unreimbursed medical expenses for Medicare and private medical insurance totaled $2,556. However, in the February 2011 SOC, it was determined that the Veteran's income was $19,095.60 based on Social Security benefits and that the reported 2009 medical expenses totaled $3,700, of which $2,926 could be used to reduce the Veteran's income. While the RO provided a list of all the records considered, it did not set out which figures it used to calculate the Veteran's medical expenses.
Therefore, a remand is warranted for an audit of the Veteran's account for the appropriate 12-month annualization period should be prepared that sets out his total income from each source, and the specific amount of any exclusions from that total, including the rationale for any such exclusion. Such information and monetary determinations should be clearly identified.
Prior to performing the audit, the Veteran should be advised to set forth his and his wife's complete income and medical expenses, and the source of each, in a VA-Form 21-8416 for December 2008 to December 2009, and a separate VA Form 21-8416 from December 2009 to December 2010.
Accordingly, the case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.)
1. Contact the Veteran and request that he submit a Request for Information Concerning Unreimbursed Family Medical Expenses (VA Form 21-8416) during the years from December 2008 to December 2009 and from December 2009 to December 2010. A separate 21-8416 should be used for the two periods. Medicare and health insurance premium payments should be separately indicated. He should also set forth his and his wife's complete income and the source of all income. The Veteran should also submit copies of any receipts, in support of unreimbursed medical expenses claimed therein.
2. Then, an audit should be conducted of the Veteran's and his wife's income and exclusions from countable income, which sets out the total income from each source, and specific amount of any exclusions from that total, including the rationale/regulatory support for all exclusions. Such information and monetary determinations should be clearly identified. A copy of the written audit should be inserted into the claims folder and another provided to the Veteran.
3. Thereafter, the issue of entitlement to nonservice-connected pension benefits should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC). The SSOC should include a discussion of the evidence, citation to pertinent law, and an explanation for the decision. The Veteran should be provided an appropriate opportunity to respond before returning the case to the Board for further appellate action.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).